Arizona Court of Appeals Division One holds that the State does not owe a duty to protect local residents from a naturally occurring wildfire.

In June 2013, lightning sparked a fire in the public wildlands near Yarnell.  Two days later, the fire burned out of control, killing firefighters and destroying property throughout Yarnell.  The property owners sued the State, alleging that it had negligently managed the firefighting efforts.  The superior court granted the State’s motion to dismiss, holding that the State does not have a duty to protect local residents from a naturally occurring wildfire.

The Court of Appeals affirmed.  The court held that a duty was not imposed as a matter of public policy.  The duty the residents sought to impose—protecting private property against a natural occurrence on public land maintained in natural condition—was unworkably broad.  Their proposed limitation—that the State only assumed the duty by attempting to suppress the fire—would lead to perverse incentives.  The proposed duty would also prioritize private property interests at the expense of broader state interests, contrary to A.R.S. § 37-1303(A), which authorizes the state forester to furnish wildfire suppression services if it is necessary to protect state lands.

The court also held that the State did not have a duty as a possessor of land.  Under the Restatement (Second) of Torts, a possessor of land is not liable for physical harm caused to others outside of the land by a natural condition of the land, and the Yarnell Hill Fire arose from a natural cause (lightning) on land that remained unused and in natural condition.  The court declined to follow those jurisdictions, such as Minnesota and Washington, which, contrary to the Restatement, hold that a possessor of land has a duty to control the spread of a fire without regard to its cause.

The court rejected the residents’ remaining negligence arguments:  that the State assumed a duty to the residents by trying to fight the fire and by exerting control over local firefighting assets.  The court also rejected the residents’ theory that the State should be held strictly liable because firefighting is an abnormally dangerous activity; the court reasoned that the risk was created by the fire, not the firefighting.

Judge Cattani authored the opinion of the court, in which Judges Winthrop and Swann joined.